Dunn and Repatriation Commission
[2007] AATA 1996
•28 November 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1996
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W 200600398
VETERANS' APPEALS DIVISION ) Re DAWN ELEANOR DUNN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President S D Hotop
Dr P A Staer, MemberDate28 November 2007
PlacePerth
Decision The Tribunal affirms the decision under review.
............[Sgd S D Hotop]..........
Deputy President
CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – disability pension – veteran served in Royal Australian Navy from 1947 to 1959 – veteran rendered operational service in 1947-1951 and 1953-1954 – veteran contracted malignant neoplasm of prostate in 1995 – veteran claimed malignant neoplasm of prostate war-caused – veteran died from malignant neoplasm of prostate in June 2003 – veteran’s claim maintained by applicant as widow – Statement of Principles – reasonable hypothesis that veteran’s malignant neoplasm of prostate connected with operational service – Tribunal satisfied beyond reasonable doubt that factual foundation of reasonable hypothesis disproved – veteran’s malignant neoplasm of prostate not war-caused – decision under review affirmed
Veterans’ Entitlements Act 1986 (Cth), s 7(1), s 9(1), s 120, s 120A and s 196B
Statement of Principles concerning Malignant Neoplasm of the Prostate (Instrument No 28 of 2005)
Statement of Principles concerning Malignant Neoplasm of the Prostate (Instrument No 84 of 1999)
Bull v Repatriation Commission (2001) 188 ALR 756
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrne v Repatriation Commission (2007) 97 ALD 359
Byrnes v Repatriation Commission (1993) 177 CLR 564
Collins v Administrative Appeals Tribunal (2007) 96 ALD 536
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Dunn (2006) 44 AAR 131
Repatriation Commission v Gorton (2001) 110 FCR 321
Repatriation Commission v Keeley (2000) 98 FCR 108
Woodward v Repatriation Commission (2003) 131 FCR 473
REASONS FOR DECISION
28 November 2007 Deputy President S D Hotop
Dr P A Staer, MemberIntroduction
1. This matter is again before the Tribunal following a successful appeal to the Federal Court of Australia by the Repatriation Commission (“the respondent”) against a decision of the Tribunal made on 2 June 2005: see Repatriation Commission v Dunn (2006) 44 AAR 131.
2. The applicant, Dawn Eleanor Dunn, is the widow of John Forbes Dunn (“the veteran”) who died from prostate cancer (malignant neoplasm of the prostate) on 15 June 2003. The veteran was first diagnosed with prostate cancer in February/March 1995.
3. The veteran, whose date of birth was 1 November 1929, served in the Royal Australian Navy (“RAN”) from 12 July 1947 to 11 July 1959, and he rendered operational service, for the purposes of the Veterans’ Entitlements Act 1986 (Cth) (“VE Act”), from 12 July 1947 to 30 June 1951 and from 2 November 1953 to 16 July 1954.
4. On 20 March 2002 the veteran made a claim for a disability pension under Pt II of the VE Act, and on 30 April 2002 a delegate of the respondent decided that the veteran’s solar keratoses condition was war-caused but that his malignant neoplasm of the prostate, and seborrhoeic keratosis, conditions were not war-caused.
5. On 21 May 2002 the veteran applied to the Veterans’ Review Board (“VRB”) for a review of the delegate’s decision. The VRB had not yet made a decision when the veteran died on 15 June 2003, and the veteran’s claim was thereafter maintained by the applicant pursuant to s 126 of the VE Act.
6. On 3 September 2003 the VRB affirmed the delegate’s decision that the veteran’s malignant neoplasm of the prostate was not war-caused. The veteran had previously withdrawn his claim in respect of seborrhoeic keratosis.
7. On 8 October 2003 the applicant applied to the Tribunal for review of the VRB’s decision and on 2 June 2005 the Tribunal set aside the VRB’s decision and, in substitution therefor, decided that the veteran’s malignant neoplasm of the prostate was war-caused. The Tribunal’s decision was, however, set aside by the Federal Court of Australia on 8 December 2006 and the matter was remitted to the Tribunal for hearing and determination according to law.
The Issue and the Tribunal’s Determination
8. The ultimate issue for the Tribunal’s determination is whether the veteran’s malignant neoplasm of the prostate, which resulted in his death, was war-caused.
9. For the reasons which follow, the Tribunal has determined that the veteran’s malignant neoplasm of the prostate was not war-caused.
The Relevant Legislation
The VE Act
10. Section 9(1) relevantly provides that a disease contracted by a veteran shall be taken to be a war-caused disease if:
“…
(b)the… disease contracted by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…”
Section 7(1) relevantly provides:
“(a)a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service; …
…”
Section 120 relevantly provides:
“(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war‑caused injury, that the disease was a war‑caused disease or that the death of the veteran was war‑caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war‑caused injury or a defence‑caused injury;
(b)that the disease was a war‑caused disease or a defence‑caused disease; or
(c)that the death was war‑caused or defence‑caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
…”
Section 120A relevantly provides:
“…
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.”
Section 196B relevantly provides:
“(1)This section sets out the functions of the Repatriation Medical Authority. The main function of the Authority is to determine Statements of Principles for the purposes of this Act and the MRCA.
Determination of Statement of Principles
(2)If the Authority is of the view that there is sound medical‑scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a) operational service rendered by veterans; or
(b)peacekeeping service rendered by members of Peacekeeping Forces; or
(c) hazardous service rendered by members of the Forces; or
(ca) warlike or non‑warlike service rendered by members;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d) the factors that must as a minimum exist; and
(e)which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.
…
Note 3: For factor related to service see subsection (14).
…
(14)A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a)it resulted from an occurrence that happened while the person was rendering that service; or
(b) it arose out of, or was attributable to, that service; or
…
(d)it was contributed to in a material degree by, or was aggravated by, that service; or
…
(f)in the case of a factor causing, or contributing to, a disease–it would not have occurred:
(i) but for the rendering of that service by the person; or
(ii)but for changes in the person's environment consequent upon his or her having rendered that service; or
(g)in the case of a factor causing, or contributing to, the death of a person–it was due to an accident that would not have occurred, or to a disease that would not have been contracted:
(i) but for the rendering of that service by the person; or
(ii)but for changes in the person's environment consequent upon his or her having rendered that service.”
The Statements of Principles
11. The Repatriation Medical Authority (“RMA”) has determined, under s 196B(2) of the VE Act, several Statements of Principles concerning malignant neoplasm of the prostate in the period from 1995 to date. The relevant Statement of Principles (“SoP”), which is presently in force, is Instrument No 28 of 2005 which took effect from 28 September 2005. That SoP relevantly states:
“…
Kind of injury, disease or death
2.(a) This Statement of Principles is about malignant neoplasm of the prostate and death from malignant neoplasm of the prostate.
(b)For the purposes of this Statement of Principles, ‘malignant neoplasm of the prostate’ means a primary malignant neoplasm arising from the cells of the prostate gland. This definition excludes soft tissue sarcoma, carcinoid tumour, non-Hodgkin’s lymphoma and Hodgkin’s lymphoma.
…
Factors that must be related to service
4.Subject to clause 6, at least one of the factors set out in clause 5 must be related to the relevant service rendered by the person.
Factors
5.The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting malignant neoplasm of the prostate or death from malignant neoplasm of the prostate with the circumstances of a person’s relevant service is:
…
(c)increasing animal fat consumption by at least 40% and to at least 50gm/day, and maintaining these levels for at least five years within the twenty-five years before the clinical onset of malignant neoplasm of the prostate; or
…
Other definitions
8.For the purposes of this Statement of Principles:
‘animal fat’ means fat contained in or derived from:
(a)meat, other flesh or offal from animals (including birds but excluding seafood);
(b)dairy products; or
(c)eggs from birds;
…”
The relevant SoP, which was in force at the time of the respondent’s decision dated 30 April 2002, was Instrument No 84 of 1999. In that SoP the corresponding relevant factor in clause 5 was expressed as follows:
“(c)increasing animal fat consumption by at least 40% and to at least 70gm/day for at least 20 years before the clinical onset of malignant neoplasm of the prostate;”
and the expression “animal fat” was defined in clause 8 to mean:
“fat contained in or derived from meat, other flesh or offal from animals (including birds), and dairy products”.
The phrase “relevant service” is defined in each of the abovementioned SoPs to mean, inter alia, “operational service”, within the meaning of the VE Act.
The Evidence
12. The evidence before the Tribunal comprised:
· the “Section 37 Documents” (T1-T31, pp 1-298) and Supplementary Documents (S1-S17, pp 299-644) lodged by the respondent (Exhibit R1);
· extract (page 79) from the transcript of the hearing before the Administrative Appeals Tribunal in the matter of Dawn Eleanor Dunn and Repatriation Commission (Application No W2003/391) on 15 February 2005 (Exhibit R2);
· report of Dr Ruth English dated 21 May 2007 (Exhibit R3);
· paper prepared by P M Warwick entitled “Predicting food energy requirements from estimates of energy expenditure” published in Recommended Nutrient Intakes: Australian Papers (Truswell et al (eds), 1990) (Exhibit R4); and
· the oral evidence of the applicant, and of Simon Dunn and Ralph Dunn (who were called as witnesses by the applicant), and the oral evidence of Dr Ruth English (who was called as a witness by the respondent).
Information provided by the veteran
13. A document describing the veteran’s relevant pre-service background, signed by the veteran and lodged on his behalf with the VRB on 21 February 2003, is contained in the Section 37 Documents (T15, pp 148-149). The contents of that document are as follows:
“John Forbes Dunn was born at Kurren Kutten, a farm between Corrigin and Bruce Rock in Western Australia on 1 November 1929. John was the fourth of six children making up this large family and up to the age of ten John led a typical farming family life. His family were not deeply religious and therefore did not attend church, although the parish priest did visit the farm occasionally. His diet was typical of the times being provided by the family farm.
In November 1939 just after John turned ten his life was upset by his father’s death. Alexander Dunn died suddenly at the age of seventy of a heart attack after suffering from angina for several years prior to his death. Alexander was carrying out his normal farming duties when he died.
Being towards the end of the depression, the day following Alexander’s death saw the Bank foreclose on the farm. This had the effect of stifling the family diet as none of the farm’s produce could be used in feeding the family with the exception of dairy products (milk and eggs). The family meat was provided by the children catching local rabbits.
A few months after Alexander’s death saw the family move to Perth. This was short-lived as by June 1940 John’s mother, Janet, died from a stroke. All the children in the family were split up and sent to different families; some were adopted and others, like John, just had someone to live with. In a twelve month period John had suffered a major psychological trauma with losing both his mother and father, the family home and ending up living with a stranger.
The ‘stranger’ for John turned out to be the parish priest, Rev T E Currie. Rev Currie was a bachelor who lived a very frugal existence on a low stipend from the church in a large parish and quite often informed John as to how lucky he was to be taken in and cared for. In 1942 Rev Currie left the country parish for the suburban parish of Bassendean in Perth’s eastern suburbs. . . . June 1942 was the start of rationing in Australia. There was little effect on John’s diet with the introduction of rationing in Australia as the stipend received by Rev Currie was that of a bachelor and did not extend to supporting a child.
John’s diet did not change in the years from the death of his parents till joining the Navy in 1947... The diet as recalled by John is low in animal fats as follows:
Breakfast
Porridge or Weeties with Milk and Sugar.
Tea and Toast, the tea contained sugar and the toast may have had a scraping of butter if available.
Morning Tea
Not provided.
Lunch
Sandwiches – A choice of whatever may have been available in the cupboard as John made his own. For example: Jam or Honey, sometimes (but rarely) cheese if it had been provided by a parishioner, and a scraping of butter if available. Fruit (if in season).
Afternoon Tea (After School)
Bread and jam/honey – no butter.
Dinner
Greens (beans mainly, sometime cabbage or peas).
Boiled potatoes, one grilled lamb chop, on rare special occasions, two.
Once a week shin beef and vegetable stew.
Weekend evening meal – leftovers (mainly stew).
Sweets – tinned fruit – occasionally jellies, junkets or custard, or bread and jam.
A cup of tea.
Rev Currie was not concerned about the diet as he supplemented his own diet with morning teas, lunches and afternoon teas provided by parishioners, thereby living quite well himself. In November 1944 Rev Currie married Mavis Tozer. Mavis was an Honorary Colonel in the Lady Gowrie Organisation who supplemented the rectory diet with ‘Society Lunches’ and Dinners to which John was not invited. Mavis was very much concerned with ‘Society’ and how she was viewed and did not have much in the way of maternal instincts, therefore John was treated by Mavis as the Rev Currie’s problem in which she did not interfere. Rev Currie and Mavis were still married to each other when they died in their late seventies and eighties. They never had children.
Rev Currie insisted that John leave school when he was 16 as he could no longer afford to pay for his schooling. John became an apprentice cabinet maker for a short time. The Curries left Australia in early 1947, ending John’s apprenticeship and leaving John behind with no family and little means of support. John managed to stay on as a labourer with the cabinet maker until joining the Navy in July 1947.
John joined the Navy at the end of WWII while rationing was still in force in Australia. John stayed in the Navy for the next twelve years being supported through the lean post-war years by his proxy family (the Navy) who cared and supported him with stability, camaraderie, clothing and a rich diet which John came to associate with a caring family environment.
John left the Navy in 1959 as a qualified electrical technician. John used this training and the money he had from the Navy to turn this into an electronics qualification recognised in WA. John used this qualification to obtain well paid work in the burgeoning electronics industry. The driving motivation for John was to maintain the same caring environment for his own family that he had received in the Navy. A major portion of this family life was the diet rich in animal fats that he did not perceive as a threat to his or his family’s health.”
14. A report setting out the veteran’s typical pre-service daily diet and service/post-service diet, signed by the veteran and attached to his claim for a disability pension made on 20 March 2002, is contained in the Section 37 Documents (T10, pp 136 – 139). The contents of that document are as follows:
“…
1.Report detail of significant long lasting increase in the consumption of animal fat
July 1947 to January 1984. Joined the RAN July 1947 and was fed three (3) animal fatty meals a day.
15 October 1953 to 23 September 1954. A gradual increase in the amount of animal fatty meat meals a day as the ship – the Murchison – approached the Northern Hemisphere into Korean Water and colder weather.
23 September 1954 to January 1984. Discharged from the RAN 12 July 1959. Continued RAN diet until January 1984.
2.Daily diet before the increase in animal fat
The following is an example of my daily diet before joining the RAN on the 12 July 1947.
BREAKFAST porridge or cereal
1 piece of toast with vegemite, peanut butter or just plain with butter
tea
Morning Tea tea - cake or biscuits if available
LUNCHEON sandwiches 1 or 2 rounds, with vegemite, peanut paste, honey or jam, or combination of two
Afternoon Tea tea
DINNERmeat – 1 serve of one of the following, lamb, rabbit, stewed beef, sausages, with or without gravy
Sweets – 1 serve of one of the following, jelly and stewed or tinned fruit with custard or junket or fresh fruit when available
2.(sic)Daily diet after the increase of animal fat
The following is an example of the diet that was available and common throughout the RAN.
SUNDAY
BREAKFAST fried eggs when available, otherwise scrambled eggs, bacon, sausages, gravy and buttered toast, tea
DINNERroast pork and roast vegies with gravy
sweets – pudding
TEAtea and cake
SUPPER baked beans on toast or bread
MONDAY
BREAKFAST similar to Sunday
DINNERfried lamb chops and gravy with boiled vegies
sweets – pudding
TEAtoast, cheese, marmite or jam, tea
SUPPERsimilar to Dinner and sweets
TUESDAY
BREAKFAST hot mince on toast, toast and tea
DINNERsavoury pie and vegies, sweets
TEAsimilar to Monday
SUPPERcorned beef and carrots with a mustard sauce
sweets – sago and pineapple pieces
WEDNESDAY
BREAKFAST similar to Sunday
DINNERmid week roast, vegies and gravy and sweets
TEAsimilar to Monday
SUPPER similar to Dinner, sweets
THURSDAY
BREAKFAST similar to Sunday
DINNER meat stew and boiled vegies, sweets
TEAsimilar to Monday
SUPPER meat pie and vegies, sweets
FRIDAY
BREAKFAST similar to Sunday
DINNERfish kedgeree and white sauce or fried fish, sweets
TEAsimilar to Monday
SUPPER fish kedgeree and white sauce, sweets
SATURDAY
BREAKFAST similar to Sunday
DINNERfried sausages and gravy, mashed potatoes and vegies, sweets
TEAsimilar to Monday
SUPPER mince on toast or bread, sweets
KOREA – Station Yong Pong Do at 38th Parallel
In the cold climate in Korea we were told to increase our intake of fat so as to increase body warmth in the freezing climate. This meant an increase of fatty meat foods as this is all that was available. Our diet was similar too, as already outlined, but more of. We were told that in Korea animal fat was important in the cold weather, so that our bodies would be able to handle the very cold climate to which our bodies were not accustomed.
During action stations we were issued with cold meat sandwiches, hunks of cheese and slabs of bread and cheese and, of course, hot tea. During other times we would munch on bread fried in lamb fat as we were about our duties.
The Murchison, like most Australian ships, had minimum heating and it was generally accepted that a diet rich in animal fats would protect from the freezing conditions.
On discharge I insisted that I continue this diet to which I had become accustomed until January 1984 when it was more widely known and accepted that this was not a healthy diet. My wife gradually changed the family dietary habit to what is now accepted as a more sensible diet.
eg Breakfast cereal – tea
Lunch salad sandwiches and fresh fruit
Dinner meat – mainly grilled with little or no fat or stews in winter, with cooked vegies or salads. Sweets – ice-cream, stewed fruit or fresh fruit if required.”
15. According to a transcript of the hearing of the veteran’s application before the VRB on 5 May 2003, the veteran, in answer to the question:
“Why did you continue eating the same sort of diet that you had in the Navy for the next 20 odd years?”
said:
“Well, probably largely from ignorance because it was, to me it was, a good diet, I always enjoyed it and then when I got married [1955] we sort of continued on eating, I suppose you could say, fatty foods and, you know, a normal diet I was used to . . . So… I just carried on like that and when I got out of the services . . . the same sort of diet was just carried on until, well it was probably in the ’70s really that we started to talk about…” (T29, pp 291-292)
The applicant’s evidence
16. A signed statement of the applicant was in evidence (Exhibit R1, document S1, pp 299-300).
17. In her oral evidence-in-chief the applicant said that she and the veteran were married on 25 June 1955. She said that she commenced cooking for the veteran on a regular basis when he was discharged from the RAN in July 1959. She said that, before the veteran’s discharge from the RAN, she had become aware of his meal preferences and that, after his discharge, she continued to prepare meals for him in accordance with those preferences.
18. In cross-examination the applicant said that she typed the document, set out in paragraph 14 above, “after dictation from” the veteran. She said that the contents of the document, set out in paragraph 13 above, were dictated by the veteran to his son, Simon Dunn, and were typed by Simon Dunn.
19. The applicant was referred to a Dietary Survey form which is contained in the Section 37 Documents (T19, pp 181-191). That form, which was completed and signed by the applicant and dated 27 September 2002, contains the following details of the veteran’s pre-service and post-service diets:
Pre-service daily eating pattern
“Breakfast porridge (1 cup) or weeties (1 cup) with milk (1/4 cup) and sugar (2tsp)
toast – 1 slice with butter (1 tsp)
tea – with milk and sugar (2tsp)
Mid-morning not provided during week. Weekend – cup of tea with milk and sugar (2 tsp)
Lunch sandwiches – 2 rounds with jam, honey, vegemite (no butter)
fruit in season
cup of tea with milk and sugar (2 tsp)
Mid-afternoon tea with milk and sugar (2tsp)
bread with jam or honey (no butter)
Dinnergrilled lamb loin chop (1 chop)
greens – beans, cabbage or peas boiled
potato – boiled (1 potato)
once a week – shin beef and vegetable stew (1 cup)
weekends – left overs – mainly stew ( ½ cup)
sweets – tinned fruit, jelly, junket or custard or 1 slice bread and jam. Cup of tea with milk or (sic) sugar (2 tsp)
Late evening nil.”
Post-service daily eating pattern
“Breakfast2 eggs (fried) with 2 rashers bacon
2 slices of toast with butter (4 tabs)
tea with milk and sugar (2 tsp)
Mid-morning tea with milk (2 tabs) and sugar (2 tsp) – cake or biscuits
Lunchmeat pies – 2 or pasties – 2 or bread rolls – 2 with meat, cheese, butter and salad
custard slice or cream sponge
cup of tea with milk and sugar
Mid-afternoon tea with milk and sugar and biscuits
Dinnermeat – any one of the following – sausages/pies/meat stew/roast lamb/pork chops/grilled steak and lamb chops with vegetables – boiled with mashed potatoes – or – fried chips and salads, sometimes, fish, chips and salad
sweets – ice-cream, jellies, stewed fruit, orange custard, lemon meringue pie (usually ice-cream or custard with any of the mentioned sweets)
Late evening tea with milk and sugar
biscuits or cake.”
The form also included a food frequency record, in respect of the pre-service period and the post-service period, completed by the applicant.
20. The applicant said that, in the period from their marriage in June 1955 until the veteran was discharged in July 1959, when he was not away at sea and they were living together, the only meal that she prepared for him was the evening meal; his other meals were provided at the RAN base.
21. The applicant said that, when she and the veteran were living in Frankston, Victoria, shortly after they were married, she was “absolutely staggered” by the great variety of meats that were available there, compared to what had been available in Perth, including veal, beef, sausages, steak, mince, lamb and mutton. She said that the veteran “loved” roast lamb, roast beef, and chops, and that she used to cook corned beef occasionally.
22. The applicant said that the veteran was “always lean” and that, whenever he was weighed, his weight was “always around about 11 stone 2 [pounds]” (that is, approximately 71 kilograms).
The evidence of Simon Dunn
23. A signed statement of Simon Dunn, dated 15 February 2005, was in evidence (Exhibit R1, document S2, p 301). The contents of that statement are as follows:
“Being the youngest member of the family, the structure and style of advice was not delivered to me in any formal way. Most of the advice and parental concern was passed onto me through tradition and learning from my older siblings. My attitude to diet and eating was learned through these methods.
Specifically John Dunn passed his attitudes to diet and eating through the meals delivered to the table, by what he ate and his attitude to mealtime behaviour. John’s attitude to mealtime behaviour was that the television and other entertainment sources should be turned off unless for special occasions, and conversation about the day’s events and family concerns should be discussed, unless there were visitors to the table or we were visiting elsewhere, then the discussion should be restricted to general topics of conversation.
The meal as served should be eaten in its entirety and if insufficient, seconds should only be taken if they are offered. John’s words on this were simple, ‘You have two choices, you can take it or leave it’, meaning the meal in its entirety not individual items on your plate, therefore if you started the meal you were to finish it, if you chose to leave the meal then there would be no additional sustenance available to you until the next mealtime, and this was strictly enforced.
You did not snack between meals except for morning or afternoon tea and this would consist of either tea or a cold drink and either a couple of biscuits or a slice of cake if available and as a child supper was a rarity. This meant to me that the meals at breakfast, lunch and dinner should be sufficient. Meat products and fried foods rated high in the meals, bacon and eggs being the preferred breakfast if possible, a hot lunch is a proper meal, sandwiches were only for those occasions such as picnics where a hot lunch was not possible, and always a solid dinner with meat and potato with salad or vegetables as a side to complement the meal.
I did not spend much time at other people’s places for meals while I was growing up and I only left home when I joined the RAAF, where this type of meal was always available at the mess, so it was only when I got married and was exposed on a regular basis to my wife’s family that I realised that the diet I was brought up on was not entertained by everyone, however to this day the staples of this diet plan are still ingrained in my way of life. Although the fitness and healthy lifestyles promoted in society have changed my family’s daily diet, on special occasions I always revert to what I was brought up on.”
24. In his oral evidence Simon Dunn said that he had no particular recollection of the veteran’s having a liking for lamb, and he added that, when he was growing up, “meat was meat” to him and he didn’t know whether it was lamb or beef or some other kind of meat. He was able to confirm, however, that the veteran always had a liking for eggs.
The evidence of Ralph Dunn
25. A signed statement of Ralph Dunn, dated 15 June 2005, was in evidence (Exhibit R1, document S3, p 302). The contents of that statement are as follows:
“I am the eldest son of John Forbes Dunn. I was born on 12 June 1956.
My father’s attitude to food:
You had to eat whatever was put in front of you; your personal preference had little bearing.
You had to eat everything on your plate; it was all good for you.
Food was not to be wasted.
Recollections:
In 1965, when I was about 9, my mother had gone to stay with her parents for the day. That left dad in charge of the meals, so on that Sunday, for lunch, he had a fry up. So we had a lamb chop, bacon, tomatoes and egg, on toast. All this was fried in dripping that mum religiously collected from the roasts, etc. My problem was that I did not like fried eggs at the best of times, and never liked them with runny yolks as this one had. So I had to sit in front of this egg, and wait until my younger brothers and father had left the house, about an hour, and then quickly dispose of the egg by throwing it into the slow combustion fire that we used.
Even though we had lots of salads and/or vegetables with our meals, there were always lamb chops, with lots of fat left on them, or steak or sausages or rissoles. All the meat was fried in dripping. At home we rarely ate chicken or fish. Rarely did we have take-away meals, fish and chips maybe once a month for a treat.”
26. In his oral evidence Ralph Dunn confirmed that the veteran was particularly fond of lamb. He said that, when he was growing up, he had a “reasonable amount” to do with Rev Currie and Mrs Currie and would occasionally spend weekends with them. He said that the meals he had there were similar to meals he had at home, including boiled vegetables and meat such as chops and sausages. He said that they would have bacon with toast and butter for breakfast, and biscuits for morning tea and afternoon tea.
27. He said that the veteran did not talk greatly about the kinds of food he ate when he lived on the farm with his parents. He did recall being told, however, that, after the veteran’s father died, the veteran’s family “lived on rabbits almost exclusively”.
28. He confirmed that the veteran generally ate “big meals”. He said that, when he visited Rev Currie, the meals he had there were “not as big as what they were at home” but they were “more than enough”.
The evidence of Dr Ruth English
29. Dr English, Consultant Nutritionist, was called as a witness by the respondent. An abbreviated Curriculum Vitae (“CV”) of Dr English was in evidence (Exhibit R1, document S12, pp 416 -418). According to her CV, Dr English:
· holds postgraduate tertiary qualifications in nutrition (1957, 1994);
· has been employed in various senior professional capacities, including Chief Nutritionist, Commonwealth Department of Community Services and Health (1979-1991) and Chief Nutritionist, National Food Authority (1991-1993), and has practised as a nutrition consultant since 1993;
· has held numerous national and international consultancies, and membership of numerous national committees and (as a representative of the Australian Government) international committees, relating to nutrition and public health;
· has written books and produced over 100 papers published in scientific journals and conference proceedings, including publications in the area of nutrition and public health in Australia and in developing countries.
30. Dr English confirmed that she is the author of the following reports which are in evidence:
·“Animal Fat in the Australian Diet, including the Armed Services’ Rations in World War 2: Scientific Review for Department of Veterans’ Affairs”, dated August 1998 (Exhibit R1, document T20, pp 192-221);
·“Nutrition Report on Appeal of Mrs Dawn Eleanor Dunn to the Administrative Appeals Tribunal”, dated 14 May 2004 (Exhibit R1, document S10, pp 354-392);
·“Second Nutrition Report on Appeal of Mrs Dawn Eleanor Dunn to the Administrative Appeals Tribunal”, dated 31 August 2004 (Exhibit R1, document S11, pp 393-415);
·“Nutrition Report on Appeal of Dawn Eleanor Dunn v Repatriation Commission”, dated 21 May 2007 (Exhibit R3).
Dr English confirmed that she honestly holds the opinions expressed by her in those reports.
31. Dr English was first referred to her abovementioned report of 14 May 2004. She confirmed that she prepared that report on the basis of the information contained in the Dietary Survey form – including, in particular, the daily eating pattern and the food frequency record – completed by the applicant (referred to in paragraph 19 above).
32. In that report Dr English stated the following findings and opinions, in relation to the veteran’s reported pre-service diet:
· the animal fat intake of the veteran in the pre-service period, as reported in the abovementioned Dietary Survey Form, was 42.1 grams per day;
· the veteran’s pre-service energy intake – based on the abovementioned reported dietary information and the veteran’s recorded weight of 66.4 kilograms and age of 17 years 7 months on enlistment – was 7,669 kilojoules per day;
· the veteran’s pre-service basal metabolic rate was 7,668 kilojoules per day;
· the veteran’s pre-service energy requirement – based on the abovementioned information and on his pre-service occupation of apprentice cabinet maker and his other reported physical activities – was 16,236 kilojoules per day.
· allowing for a maximum coefficient of variation of minus 10 per cent (in favour of the veteran), the veteran’s pre-service daily energy requirement was at least 14,612 kilojoules, resulting in a daily deficit in his energy intake of 6,943 kilojoules (14,612 – 7,669);
· a daily energy intake deficit of 6,943 kilojoules (that is, a weekly energy intake deficit of approximately 48,600 kilojoules) would result in a weekly weight loss of 1.4 kilograms (that is, an annual weight loss of approximately 70 kilograms).
On the basis of her abovementioned findings and opinions, Dr English concluded as follows:
“It is physiologically impossible and beyond any reasonable doubt (sic) that Mr Dunn was losing the excessive amount of some 70kg of his body weight every year on his pre-war diet of 42.1g animal fat and daily energy intake of 7,669 kJ. The only scientific explanation for the large variation between the veteran’s pre-service energy intake and his energy requirement is that the pre-service diet return for Mr Dunn is clearly invalid, unacceptable as a record of the veteran’s diet before enlistment, and significantly under-reports his true food intake.”
33. As regards the veteran’s RAN service diet, Dr English noted in her report that the information provided by the veteran in connection with his disability pension claim (see paragraph 14 above) did not contain sufficient detail to permit an analysis of his daily intake of animal fat and energy during that period. For the purpose of undertaking such an analysis, Dr English referred to the Consolidated Orders and Regulations for the Governance of the Naval Forces of the Commonwealth 1942, Volume 1 – in particular, Section 452, “Standard Ration and System of Messing for Ships not Victualled on the General Messing System”, which contained a detailed daily standard food ration which was in force from 1942 to at least 1953 (that is, for most, if not all, of the period of the veteran’s operational service). Having undertaken that analysis, Dr English’s finding was that the level of animal fat in the veteran’s RAN service diet was 108.8 grams per day. Dr English then stated the following overall conclusion:
“It is concluded that the level of animal fat in Mr Dunn’s service diet of 108.8g per day was at a moderate level, and lower than the level of animal fat for an adult male civilian of 129.0g per day during World War 2, as reported in the 1944 national household dietary survey. As the reported pre-service diet of the veteran has been shown as invalid and significantly under-reported, the most appropriate animal fat intake to adopt for comparison with the calculated intake of animal fat in the service diet is the civilian documented intake of 129.0g, being consistent with his pre-service energy requirement. Thus there would have been a fall in Mr Dunn’s animal fat intake during service, based on analysis of the authorized ration scale issues for RAN ships. The above conclusions are supported by the failure of the veteran to gain weight during his service period despite the sedentary nature of his occupation in service as an electrician compared to his pre-service occupation as a labourer.
The inference drawn from the above is that the animal fat level in Mr Dunn’s service is best described as moderate, maintaining his body weight at enlistment through his service period until his discharge. Also if the civilian level of animal fat intake in 1944 is adopted as the veteran’s pre-service intake (to replace the significantly under-reported and invalided (sic) intake of 42.1g), Mr Dunn’s animal fat intake would have decreased during his service period.”
34. Dr English’s report then addressed the veteran’s post-service diet. On the basis of the veteran’s post-service diet return (including the post-service daily eating pattern and food frequency record) completed by the applicant (see paragraph 19 above), Dr English’s findings were as follows:
· the veteran’s animal fat intake in the post-service period was 224.8 grams per day;
· the veteran’s post-service energy intake was 17,357 kilojoules per day;
· the veteran’s post-service basal metabolic rate was 6,984 kilojoules per day;
· the veteran’s post-service energy requirement – based on his age, weight and occupation of electronics technician – was estimated to be 11,872 kilojoules per day;
· allowing for a maximum coefficient of variation of plus 10 per cent (in favour of the veteran), the veteran’s post-service daily energy requirement was 13,059 kilojoules, resulting in a daily excess in his energy intake of 4,298 kilojoules (17,357 – 13,059);
· a regular weekly energy intake excess of 30,086 kilojoules (4,298 x 7) would result in a weekly weight gain of 0.9 kilograms (that is, an annual weight gain of approximately 45 kilograms).
On the basis of her abovementioned findings, Dr English concluded as follows:
“It is most improbable and beyond reasonable doubt (sic) that Mr Dunn was gaining the excessive amount of 45kg every year on his post-service diet of 224.8g of fat per day and 17,357 kJ per day. The only scientific explanation for the large variation between the veteran’s post-service energy intake and his energy requirement is that the post-service diet return for Mr Dunn provides an over-reporting of his actual intake. The information provided in the diet return is clearly invalid and unacceptable as a record of the veteran’s diet during his post-service period.”
35. Finally, Dr English addressed para (c) of clause 5 of the relevant SoP which was then in force – namely, Instrument No 84 of 1999 – and, on the basis of her analysis, expressed the following conclusions:
“The evidence does not support the proposition that Mr Dunn’s animal fat intake increased by at least 40 percent, though considered to have reached at least 70g per day. Scientific analysis of the evidence provided showed beyond reasonable doubt that Mrs Dunn’s Application did not meet the criteria of the SoP on Malignant Neoplasm of the Prostate (Instrument 84 of 1999, amended by Instrument 69 of 2002.)
…
It is concluded that Mr Dunn’s consumption of animal fat during the post-service period would have remained at 70g per day or above for at least the required minimum period of 20 years.”
36. Dr English’s report of 31 August 2004 was prepared by her on the basis of additional information relating to, inter alia, the veteran’s activity level in the pre-service period, the service period, and the post-service period, provided by Simon Dunn in response to her abovementioned report of 14 May 2004. As regards the pre-service period, Dr English commented as follows:
“… I have re-worked Mr John Dunn’s energy requirement from his estimated basal metabolic rate of 7668 kJ per day, allowing for a decrease in his physical activity level from heavy (activity factor of 2.1), to moderate/heavy (activity factor of 1.95) and to moderate (factor of 1.8) activity levels. …
Energy requirement (moderate/heavy) = 7,688 x 1.95 = 14,953(+/-10%) kJ
Energy requirement (moderate) = 7,668 x 1.8 = 13,802(+/-10%) kJ
Again, taking the bottom level of the coefficient of variation of 10 per cent for both activity levels to advantage the Applicant, the energy requirements for moderate/heavy and moderate activity levels are 13,495 and 12,422 kJ. Repeating the same calculation as in … my report of 14.5.04 concerning the calculated dietary energy intake of 7,669, the reduced activity equations would result in a regular and continuing weekly weight loss on Mr John Dunn’s pre-service diet of up to 1.2kg (2.7lb) and 1.0kg (2.1lb) respectively. Therefore both these calculated weight losses based on long-standing scientific principles of physiology and energy exchange clearly and scientifically prove without doubt that the stated usual pre-service diet of Mr John Dunn significantly under-reports his true intake and is classified as invalid. …” (original emphasis)
As regards the post-service period, Dr English commented as follows:
“… I have re-worked Mr John Dunn’s energy requirement from his estimated basal metabolic rate of 6,984 kJ per day, allowing for a moderate/heavy level of activity.
Energy requirement (moderate/heavy) = 6,984 x 1.95 = 13,618(+/-10%) kJ
Again, taking the top level of the coefficient of variation of 10 per cent to advantage the Applicant, the energy requirement for the moderate/heavy level is 14,980 kJ. Repeating the same calculation as in… my report of 14.5.04 concerning the calculated dietary energy intake of 17,357 kJ, results in a regular weekly weight gain of up to 0.5kg (1.1lb) on Mr John Dunn’s post-service diet of a minimum of 20 years duration. Therefore this calculated weight gain per week on a long-term diet based on established scientific principles of physiology and energy exchange, clearly and scientifically proves without doubt that the stated usual post-service diet of Mr John Dunn significantly over-reports his true intake and so continues to be classified as invalid.” (original emphasis)
Dr English concluded as follows:
“In the attached response, I have answered the issues raised by Mr Simon Dunn relative to information, provided at the time I completed my nutrition report of 14.5.04. Additional information has now been given concerning Mr John Dunn’s activity level during pre-service, in-service and post-service periods. Accepting this information as a true and honest assessment of the veteran’s then activity levels, I have made changes to the veteran’s activity level for the pre- and post-service (sic), and re-estimated the energy requirement for these two periods. These re-estimates still convincingly show a major under-reporting of the veteran’s pre-service diet and an over-reporting of his post-service diet, based on irrefutable and powerful scientific principles of physiology and energy exchange. The classification for the diet return for both pre-service and post-service periods remains invalid.”
Analysis
Was the veteran’s malignant neoplasm of the prostate a war-caused disease, within the meaning of s 9 of the VE Act?
37. This question is, in accordance with s 120(1) of the VE Act, to be determined on the “reverse criminal” standard of proof – that is to say, the Tribunal must determine that the relevant disease was a war-caused disease “unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination”. Pursuant to s 120(3) of the VE Act, the Tribunal shall be so satisfied if, after consideration of the whole of the material before it, it is of the opinion that that material “does not raise a reasonable hypothesis connecting the … disease … with the circumstances of” the veteran’s operational service. If a relevant SoP, determined under s 196B(2) of the VE Act, is in force, a raised hypothesis connecting the relevant disease with the circumstances of the veteran’s operational service will be “reasonable” only if that SoP upholds that hypothesis: see s 120A(3) of the VE Act.
38. For the purpose of determining whether the veteran’s disease, namely malignant neoplasm of the prostate, was a war-caused disease, within the meaning of s 9 of the VE Act, the Tribunal will follow the approach prescribed by the Full Court of the Federal Court of Australia in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98, as subsequently qualified by the Full Court: see Bull v Repatriation Commission (2001) 188 ALR 756 at 759; Woodward v Repatriation Commission (2003) 131 FCR 473 at 483; Collins v Administrative Appeals Tribunal (2007) 96 ALD 536 at 543; Byrne v Repatriation Commission (2007) 97 ALD 359 at 366.
The raised hypothesis
39. The Tribunal, having considered the whole of the material before it, is of the opinion that that material points to a hypothesis connecting the veteran’s malignant neoplasm of the prostate with the circumstances of his operational service as follows:
·from the commencement of his RAN service (including his operational service) on 12 July 1947, the veteran was introduced to a daily service diet which contained a substantially higher level of animal fat than his daily pre-service diet, and he maintained that daily diet for the duration of his RAN service (including his operational service);
·after his discharge from the RAN on 11 July 1959, he maintained a diet with a high animal fat content (similar to his RAN service and operational service diet) until January 1984 because he associated that diet with the “caring family environment” which he enjoyed in the RAN;
·his maintaining that high animal fat diet until January 1984 contributed in a material degree to his subsequently contracting malignant neoplasm of the prostate.
The SoPs
40. As previously mentioned, the SoP concerning malignant neoplasm of the prostate, which is presently in force, is Instrument No 28 of 2005. The SoP concerning malignant neoplasm of the prostate, which was in force when the respondent made its decision on 30 April 2002, and to which it may be necessary for the Tribunal also to refer (see paragraph 41 below), was Instrument No 84 of 1999.
Is the raised hypothesis a reasonable hypothesis?
41. In accordance with s 120A(3) of the VE Act, the raised hypothesis will be a reasonable hypothesis only if it is upheld by the relevant SoP. In circumstances where different SoPs concerning the relevant injury or disease have been in force at different times since the making of the relevant claim under the VE Act (as in the present case), the SoP to which reference must first be made by the Tribunal is that which is in force at the time of the Tribunal’s decision, but, if the raised hypothesis is not upheld by that SoP, reference must then be made to the SoP which was in force when the Repatriation Commission made its decision on the claim, and in respect of which the claimant had an “accrued right” for the purposes of s 50 of the Acts Interpretation Act 1901 (Cth): Repatriation Commission v Keeley (2000) 98 FCR 108; Repatriation Commission v Gorton (2001) 110 FCR 321.
42. As regards the abovementioned raised hypothesis, there is a substantial body of material before the Tribunal – namely, the material referred to in paragraphs 13-14 and 19 above – which points to:
·the veteran’s pre-service diet having involved the consumption of 42.1 grams of animal fat per day (as calculated by Dr English on the basis of the abovementioned material);
·the veteran’s post-service diet having involved the consumption of 224.8 grams of animal fat per day (as calculated by Dr English on the basis of the abovementioned material).
There is also material before the Tribunal – namely, Dr English’s report of 14 May 2004 – which points to the veteran’s RAN service (including his operational service) diet having involved the consumption of 108.8 grams of animal fat per day. There is, furthermore, material before the Tribunal which points to:
·the veteran’s having maintained, after his discharge from the RAN in 1959, a diet containing an amount of animal fat at least as high as that contained in his RAN service (including his operational service) diet until January 1984;
·his having maintained such a diet for that period because he associated it with the “caring family environment” which he enjoyed during his RAN service (including his operational service); and
·his having first been diagnosed with malignant neoplasm of the prostate in 1995.
43. Accordingly, the Tribunal, having considered the whole of the material before it, is of the opinion that that material raises a hypothesis that is consistent with clause 5(c), together with clause 4, of Instrument No 28 of 2005. That being the case, it is unnecessary for the Tribunal to refer to Instrument No 84 of 1999. The Tribunal notes, however, that it is also of the opinion that the material before it raises a hypothesis that is consistent with clause 5(c), together with clause 4, of Instrument No 84 of 1999.
44. The Tribunal is of the opinion, therefore, that the abovementioned raised hypothesis, connecting the veteran’s malignant neoplasm of the prostate with the circumstances of his operational service, is a reasonable hypothesis.
Finding
45. Finally, the Tribunal must consider, in accordance with s 120(1) of the VE Act, whether it is “satisfied, beyond reasonable doubt, that there is no sufficient ground” for determining that the veteran’s malignant neoplasm of the prostate was a war-caused disease, within the meaning of s 9 of the VE Act. If the Tribunal is not so satisfied, it must, in accordance with s 120(1), determine that that disease was a war-caused disease.
46. The relationship between subss (1) and (3) of s 120 of the VE Act was explained by the High Court of Australia in Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564. In Bushell Mason CJ, Deane and McHugh JJ said (at 413, 415, 416):
“… Sub-section (3) is concerned with whether ‘the materal’ raises a reasonable hypothesis that the relevant injury, disease or death was connected with the service of the veteran. It is not concerned with conflicts in the material, whether they be of opinion or fact. The purpose of sub-s (3), as demonstrated by its terms and its history, is to ensure that a claim to which s 120 applies is not met unless there is some material which raises the relevant causal hypothesis …
…
If the material does raise a reasonable hypothesis of a connexion between the service and the injury, disease or death, the claim must be dealt with in accordance with s 120(1). That is to say, the Commission must determine that the injury, disease or death was war caused ‘unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination”. …
…
The Commission will be satisfied beyond reasonable doubt ‘that there is no sufficient ground for making [the] determination’ if it is satisfied beyond reasonable doubt that it cannot accept the raised facts or so many of them as are necessary to support the hypothesis. Thus, if the Commission is satisfied beyond reasonable doubt that it cannot accept the raised facts because of the unreliability of the material which is claimed to support them or because of the superior reliability of other parts of the material before the Commission or because the raised facts depend on inferences which the Commission is satisfied cannot be drawn, the Commission will be satisfied that there is no sufficient ground for making the determination. …”
In Byrnes Mason CJ, Gaudron and McHugh JJ said (at 571):
“The position may be summarized as follows: (1) First, sub-s (3) of s 120 is applied: do all or some of the facts rasied by the material before the Commission give rise to a reasonable hypothesis connecting the veteran’s injury with war service? … (2) If a reasonable hypothesis is established, sub-s (1) of s 120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.”
47. In the present case, the Tribunal, having considered the whole of the material before it, regards the analysis, opinions and conclusions set out in Dr English’s abovementioned report of 14 May 2004, and confirmed in her oral evidence, as cogent, and it accepts them. The Tribunal notes that there was no expert evidence before it which contradicted Dr English’s analysis, opinions and conclusions.
48. More specifically, the Tribunal, on the basis of Dr English’s report, is satisfied, beyond reasonable doubt, that:
·the veteran’s reported pre-service daily diet containing 42.1 grams of animal fat (as calculated by Dr English) substantially understates the amount of animal fat actually consumed by him on a daily basis in that period, and, accordingly, it cannot be regarded as reliable;
·the amount of animal fat consumed by the veteran on a daily basis during his RAN service (including his operational service), by reason of the standard diet provided to him in the course of that service, was at least 108.8 grams per day;
·the amount of animal fat consumed by the veteran on a daily basis in the period immediately prior to, and as at the commencement of, his operational service was at least 108.8 grams per day (and probably greater than that amount).
In short, the Tribunal is satisfied, beyond reasonable doubt, that the veteran’s consumption of animal fat did not, during the period of his RAN service (including his operational service), increase by at least 40%, or at all, compared with the amount of animal fat consumed by him in the period immediately prior to, and as at the commencement of, his operational service.
49. As regards the post-service period, the Tribunal, on the basis of Dr English’s report, is satisfied, beyond reasonable doubt, that the veteran’s reported daily diet containing 224.8 grams of animal fat (as calculated by Dr English) substantially overstates the amount of animal fat actually consumed by him on a daily basis in that period, and, accordingly, it cannot be regarded as reliable. It may be that the veteran, in the post-service period, increased his daily animal fat consumption beyond the amount which he consumed during the period of his RAN service (including his operational service). The Tribunal is, however, satisfied, beyond reasonable doubt, that any such increase in the veteran’s animal fat consumption occurred solely by reason of his own voluntary choice and was not related to (within the meaning of s 196B(14) of the VE Act) his operational service.
50. Accordingly, the Tribunal is satisfied, beyond reasonable doubt, that the factual foundation of the raised hypothesis connecting the veteran’s malignant neoplasm of the prostate with the circumstances of his operational service is disproved, and that, therefore, there is “no sufficient ground” (within the meaning of s 120(1) of the VE Act) for determining that the veteran’s malignant neoplasm of the prostate was a war-caused disease, within the meaning of s 9 of the VE Act: Bushell (above), at 416; Byrnes (above), at 571.
51. In accordance with s 120(1) of the VE Act, therefore, the Tribunal finds that the veteran’s disease, namely, malignant neoplasm of the prostate, was not a war-caused disease, within the meaning of s 9 of the VE Act.
Decision
52. For the above reasons, the Tribunal affirms the decision under review.
I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Dr P A Staer, Member
Signed: ..........................[Sgd Y Maker].........................
AssociateDate/s of Hearing 5 - 6 September 2007
Date of Decision 28 November 2007
Counsel for the Applicant Mr R Grayden
Solicitor for the Applicant Hammond Worthington
Counsel for the Respondent Ms J MacDonnell
Solicitor for the Respondent Australian Government Solicitor
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